Burtners v. Keran

• Decision Date: 26 November 1873
• Citation: 65 Va. 42
• Parties: BURTNERS v. KERAN.
• Court: Virginia Supreme Court

65 Va. 42

BURTNERS v. KERAN.

Supreme Court of Appeals of Virginia.

November 26, 1873

1. K conveys land in Illinois to B, with general warranty. B conveys this land to his two infant children C and M, with general warranty. B afterwards removes to Virginia, and here conveys the same land to K with general warranty; and K then obtains a conveyance of the land from L the prior owner. K files a bill in equity in the proper court in Illinois, which has both common law and equity jurisdiction, against B and C and M, to establish his claim to the land. A formal answer is filed by a guardian ad litem for the infants, and B is proceeded against by publication, according to the laws of Illinois. Upon the hearing the court decides in favor of the infant children, C and M, and dismisses K's bill. K then sues B in Virginia in covenant on the general warranty of title in the deed from B to him. The issues were upon the pleas of covenants performed, covenants not broker, and a general plea of non est factum. On the trial K offers in evidence the record of the suit in Illinois.

HELD:

1. The fact tat B had no notice of the suit, is not a valid objection to the record as evidence in the cause; it having been proceeded in according to the laws of Illinois.

2. The Illinois court being a court of general jurisdiction, this court must presume that it had jurisdiction to try the cause in equity; and the record cannot be objected to on that ground.

3. In fires, feoffments and other common law recoveries, the warranty not only concluded the grantor or feoffer but actually transferred the after acquired estate or interest to the grantee or feoffee.

4. Conveyances under the statute of uses only pass such estate as the grantor had at the time: the warrauty merely serving as a remedy, or operating to estop the grantor from denying the ownership of the estate at the time of the conveyance executed.

5. If a person convcys land with general warranty, and does not own it at the time, but afterwards acquires the same land, such acquisition enures to the benefit of the grantee, because the grantor is estopped to deny, against the terms of his own warranty, that he had the title in question; but it does not operate actually to transfer the estate subsequently acquired.

6. Though, therefore, the deed from B to K enured to the benefit of C and M under the operation of K's warranty, and estops him from claiming the land against them, it does not pass the interest in K, or operate as a conveyance.

7. Though the estoppel of K's warranty operates in favour of C and M, B can derive no benefit from it. He can not say that his deed vested no beneficial interest in K.

8. Though an assignee can only take advantage of the covenant of warranty when an estate passes by the deed, yet it is, in favour of the grautee, a covenant in gross, and binds the warrantor though no estate passes by the deed.

9. Though the deed from B to K was fraudulent in its intent as to C and M, it was valid between the parties, and K may maintain an action against B upon the covenant of warranty.

10. The motives influencing K to take the deed from B, cannot be the subject of enquiry before the jury to defeat or vary its legal operation and effect.

11. Under the issues in this case, K is entitled to recover though the jury may believe that the covenant in B's deed to K was executed by B, induced by the fraudulent misrepresentations of K as to the effect of said covenant.

12. Where a deed is procrred by fraudulent misrepresentations the defence can only be made at law, in the mode provided by the statute; Code of 1860, ch. 172, §5; and the defendant should file a special plea averring the fraud, or special circumstances which entitle him to relief in equity. And the facts should be set forth with sufficient precision and certainty to apprize the plaintiff of the character of the defence intended to be made; and to enable the court to decide whether the matter relied on constitutes a valid claim to equitable relief.

13. As the question of fraud was not in issue before the jury though the evidence of the fraudulent misrepresentation was introduced without objection, the court, on the motion of the plaintiff, properly instructed the jury to disregard it.

This case was argued at the last term of the court at Staunton and was decided in Richmond at its present term.

This was an action of covenant in the Circuit court of the county of Rockingham, brought in March 1860, by Eli Keran against Ezra and Solomon Burtner. The covenant sued on is a covenant of general warranty, in a deed bearing date the 21st day of January 1858, by which Ezra and Solomon Burtner and their wives, in consideration of $2,000, conveyed to Eli Keran, a tract of land of one hundred and twenty acres, lying in Edgar county, in the State of Illinois; it being " the same land formerly conveyed to the said Eli Keran by James Lilley by his deed duly admitted to record in said county."

By deed bearing date the 25th day of March 1854, Eli Keran and his wife, in consideration of one dollar, conveyed with general warranty, to Ezra Burtner, who was his son-in-law, a tract of land in the county of Edgar in the State of Illinois, containing one hundred and twenty acres, " it being the same land which was formerly conveyed to the said Eli Keran by James Lilley, by his deed duly admitted to record in said county." This deed was duly recorded on the 27th of February 1855.

By deed dated the 28th of November 1855, Ezra Burtner, in consideration, as stated in the deed, of $1,500, conveyed with general warranty, this land with the same description, to his two infant children, Cornelius A. and Mary M. Burtner. This deed was executed in Illinois, and was admitted to record on the 2d of Jan. uary 1856. And by deed bearing date the 18th of December 1855, the same Ezra Burtner and his wife conveyed the same land, with general warranty, to Solomon Burtner. This deed was executed in the county of Rockingham. It was acknowledged before a notary on the day of its date; and was admitted to record in Edgar county, Illinois, on the 21st of December 1855.

Although the deeds from Keran to Ezra Burtner, and from Ezra and Solomon Burtner to Keran, describe the land conveyed in them as " the same land formerly conveyed to the said Eli Keran by James Lilley by his deed duly admitted to record in said county," no such deed from Lilly of prior date to these deeds, is to be found in the record; but by a deed dated the 26th of May, 1857, Lilley and wife, in consideration, as stated in the deed, of one dollar, grant to Eli Keran, with special warranty of title, all their right, title, interest and claim to the land. And this deed was admitted to record November 9th, 1857.

In July 1858 Eli Keran instituted a suit in equity in the Circuit court of Edgar county, in the State of Illinois, against Ezra and Solomon Burtner and Cornelius A and Mary M. Burtner, the infant children of Ezra Burtner. In his bill he set out the deed from Ezra Burtner to Cornelius A. and Mary M. Burtner; the deeds from Ezra to Solomon, and from both of them to himself: and he refers to the fact that though the deed to Cornelius A. and Mary M. Burtner was executed before the deed to Solomon Burtner, the last was first recorded; and he charges that Solomon had full and complete notice at the date of his conveyance, of the previous conveyance to the said children; but by vigilant caution and speedy travel he had procured the recording of the deed to him, before that of the deed to the children. He says that though he was aware of the deed to the children, it was only on taking steps for the recording of the deed to him, that he was apprised that the said Solomon was a purchaser with full notice of the title of said children. He says he is in possession of said land, but by reason of the situation of his title, as before set out, he is unable to dispose of the same, whilst he is deterred from enjoying and improving it. The prayer of the bill is, that his title to the land may be quieted and confirmed as against the claim, as well of the said Cornelius A. and Mary M. Burtner, as against that of Ezra and Solomon Burtner and their heirs; and for general relief.

A guardian ad litem was appointed for the infant defendants; who filed an answer for them, submitting their rights to the protection of the court. Ezra and Solomon Burtner were proceeded against as absent defendants, by publication, according to the Illinois statute; which appears to be much the same as that of Virginia.

The cause came on to be heard on the 24th of May, when the bill was taken for confessed as to Ezra and Solomon Burtner; and the court held that the deed from Ezra Burtner to Solomon Burtner, and their deed to Eli Keran were fraudulent and void in law and equity, as affecting the prior title of the infant defendants; and that the prayer of the bill be refused; and that the bill be dismissed. And Cornelius A. and Mary M. Burtner were decreed to be seized of the said land, and lawfully entitled to the quiet and undisturbed possession thereof, free from all claims made or to be made under the said fraudulent conveyances to Solomon Burtner and Eli Keran.

In this action Solomon Burtner filed a plea of non est factum; and both the defendants filed the pleas of covenants performed, and covenants not broken; and issues was made up upon them.

On the trial of the cause, after the plaintiff had introduced in evidence the deed from Ezra and Solomon Burtner to himself and proved the execution of said deed, he offered in evidence an official copy of the record of the case in the Circuit court of Edgar county, and with it he introduced a witness, who stated that he was a lawyer, and had practised law in the State of...